Appeals 2006-2874 and 2006-2747
Applications 08/544,212 and 09/287,664
Patent 5,401,305
1 D. Findings of fact on obviousness
2 The following findings are believed to be supported by a
3 preponderance of the evidence.
4
5 Examiner's obviousness rejection
6 In Appeal 2006-2747, the Examiner also rejected claims 28-32 as
7 being unpatentable under 35 U.S.C. § 103(a) over the prior art.
8 In particular, the Examiner rejected claims 28-32 as being
9 unpatentable over (1) Lagendijk (U.S. Patent 5,028,566) in view of
10 (2) Gordon (U.S. Patent 4,308,316).
11 Gordon is prior art under 35 U.S.C. § 102(b), having issued more than
12 one year prior to the filing date of the application which matured into the
13 patent sought to be reissued.
14 Lagendijk is prior art under 35 U.S.C. § 102(b) vis-à-vis the filing
15 date of the application which matured into the patent sought to be reissued.
16 Appellants also claim benefit under 35 U.S.C. § 120 of two earlier
17 applications, the earliest of which was filed on 27 December 1991.
18 Assuming without deciding that Appellants are entitled to an effective filing
19 date of 27 December 1991, Lagendijk is nevertheless prior art under
20 35 U.S.C. §102(e). The filing date of the application which matured into the
21 Lagendijk patent was filed on 27 July 1990. Appellants have made no
22 attempt to antedate Lagendijk. Accordingly, for the purpose of deciding this
23 appeal, Lagendijk is prior art.
24 The Examiner also observed—correctly—that the prior art relied upon
25 is "representative of a large body of art disclosing CVD [chemical vapor
19
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